1. These Rules have been issued upon the opposite parties to show cause why an order refusing to set aside two sales in execution of two decrees for arrears of rent should not be reversed. The petitioner is the purchaser at a mortgage execution sale of the two transferable permanent tenures in question. The landlords subsequently purchased these tenures in execution of decrees for arrears of rent and it is admitted that a portion of the arrears claimed in the rent suit fell due after the petitioner purchased the tenures in the mortgage sale. The landlords ignored the petitioner and sued the recorded tenants for the entire rent, and the question is whether the decrees in rent suits were rent decrees or money decrees. This case came up to this Court on a previous occasion and it was referred back for determination whether the decrees were rent or money decrees. The trial Court found that they were rent decrees, inasmuch as the Court found the landlord's fee had not been paid under the procedure laid down in 8. 13, Ben. Ten. Act. He came to this conclusion from the statement of the landlord and from the facts that in the order sheet of the mortgage execution case there was no record that the landlord's fees had been paid.
2. The appellate Court came to the same finding and dismissed the applications, it being held that the petitioner could not come under Order 21, Rule 89, Civil P.C. The Courts below seem to have overlooked the provisions of Bengal Council Act 1 of 1903 which lays down that no transfer shall be deemed to be invalid merely on the ground that the landlord's fee prescribed by Section 12 or Section 13 has not been paid. It is doubtful also whether they gave sufficient weight to the presumption that arises under Section 114, Evidence Act, that the procedure laid down in the Code was carried out by the Collector at the time of confirmation of sale. But apart from that, we have the evidence of the mortgagee that after the petitioner's purchase he approached the Tahsildar as well as the landlord to pay rent as manager of the petitioner, telling them of the petitioner's purchase, but they did not accept the rent. The trial Court held that this being no compliance with the provisions of Section 13, Ben. Ten. Act, Section 12 of the Act had no application in the present case. But there can be no doubt on this evidence that the landlords were perfectly well aware of the transfer at the mortgage sale and by bringing the suit for rent against the former tenants only they were claiming money which is not really rent, for admittedly a portion of the money claimed as arrears of rent fell due as after the transfer of the holdings and was not rent. In these circumstances the sale cannot be regarded as rent sales. If any authority is required for this view it is to be found in the case of Jitendra Nath Ghose v. Mon Mohan Ghose .
3. There it was pointed out by their Lordships of the Privy Council that under the Tenancy Act of 1885 instead of the transferee being bound to go to the landlord to get his name recorded, it was provided that a voluntary transfer must be made by a registered instrument and that before registration a fee was to be paid by the transferee and notice given by the Registration Office through the Collector to the landlord or, in the case of an execution sale, by the executing Court. In this state of the law their Lordships can see no foundation for the contention that a landlord can ignore all transfers of the tenure and rely upon decrees obtained by him against persons whom he chooses for his own purposes still to record as his tenants, though he knows or must be taken to know that their interest in the tenure has ceased. They point out that according to the decisions of the Board in Surapati Roy v. Ram Narayan Mukerji AIR 1923 PC 88 and Chintamoni Dutt v. Rash Behari Mondal (1892) 19 Cal 17, the original tenure holders would no longer be liable for the rent and that an effective decree therefore could only be obtained against the transferees. The Rules must accordingly be made absolute and the petitioner's applications under Order 21, Rule 89, Civil P.C, are allowed. The sales will be set aside, as the petitioner is said to have deposited the amount referred to under the provisions of that rule. Each party will bear its own costs.